On the record

Two months ago the Australian Broadcasting Corporation won access to the court pleadings in Multiplex’s litigation with Cleveland Bridge over the Wembley stadium. As a result, excerpts of these pleadings appeared in Building (9 September, page 13). This seems to be the first reported instance in which a third party has won access to court documents before the trial, and it highlights a little-known corner of the court rules that litigants should know about.

Multiplex, but not Cleveland, objected to ABC’s seeing the pleadings, saying that disclosure would lead to trial by media. And it would place Multiplex under the burden of having to comment to the press and report to the Australian stock exchange about the pleaded allegations to protect itself and its share price. Multiplex said that if ABC’s application were allowed “the floodgates would open”, with applications being made whenever documents were filed at court. The judge rejected these arguments. The critical factor for ABC was that the pleadings had been referred to in an earlier procedural hearing. Like most such hearings, it was held in public.

It was then but a short step for ABC to meet the second and final requirement – that it have a legitimate interest in disclosure. This is a low test. It was met because ABC wanted to see the pleadings for the purposes of making a programme about Multiplex for airing in Australia. The judge did not accept that because the litigation was complex, disclosure of the pleadings could give rise to selective and therefore unfair coverage. He said the position would be the same were the trial to be reported and in any case: “An informed press is in the position to analyse and explain”.

Court users beware: if you are drafting pleadings, submissions and witness statements you would be well advised to avoid including information not necessary to your case that might prove commercially awkward. You should also avoid any statements that might contradict your position in any other proceedings.

In large disputes, which tend to attract publicity, procedural hearings regularly occur in which the court is referred to the pleadings and other documents detailing the parties’ positions. It is then easy for the press to obtain copies of those documents.

In fact, documents filed at court are disclosable even if the court has not yet referred to them. Many documents, such as pleadings, are filed at court during proceedings for administrative reasons. It is, however, necessary for an applicant to show strong grounds that it is in the interests of justice for disclosure to be ordered.

At the other extreme, there are three types of court document that the public is generally entitled to see as of right. First, there are claim forms – the documents previously known as writs. They state when proceedings were started and contain the parties’ names and addresses and brief details of the claim. On 1 October the court rules were amended to say that the “particulars of claim” attached to them, which provide the full details of the case, are not disclosable in this way. Some British media organisations are challenging this amendment.

Second, there are court orders produced during proceedings. These can tell third parties about the existence of other documents filed, or yet to be filed, at court. Finally there are judgments, which under the TCC guide will usually be handed down up to three months after the end of trial.

But what if you want your quarrel settled privately? Mediation and other forms of alternative dispute resolution enable the parties to reach agreement away from the public gaze.

Confidentiality is one of the reasons that parties choose to resolve their disputes by arbitration. For adjudications, some rules, such as TeCSA’s, provide for the proceedings to be confidential between the parties except as necessary to enforce the adjudicator’s decision.

Openness is the price court users pay for obtaining high-quality justice. The sight of justice being done is a safeguard against judicial arbitrariness and seeks to support public confidence in the justice system. But ask those involved in cause célèbre proceedings if the exposure is a price worth paying and they may say: “No comment”.